Death Row Dilemma : 20-Year Wait for Execution Called Cruel and Unusual in Last-Ditch Bid for a Reprieve

The attorney for a Montana man on Death Row for 20 years, longer than anyone in the nation, argued Saturday in Pasadena that his client has been subjected to cruel and unusual punishment by his lengthy wait to be executed and that the death sentence should be struck down.

If Duncan P. McKenzie is executed Wednesday as scheduled, he would be the first person killed by Montana officials since 1943. It is McKenzie’s eighth date with death on his journey through a labyrinth of death penalty appeals.

In the unusual Saturday hearing, attorney Timothy K. Ford asked three judges of the U.S. 9th Circuit Court of Appeals to issue a stay of execution for McKenzie, 43, pending further hearings at a lower court, or to simply void the death penalty and order him resentenced.

Ford contended that 14 years of McKenzie’s wait stems from “state actions and errors” and presented the judges with a chart allocating responsibility for various segments of the delay.

“This case is completely beyond the pale,” Ford said.

At another point, he said no single person or entity was responsible for the delay but that the net result had violated his client’s rights. “You can cause cruel and unusual punishment without setting out to do it,” Ford said.

But Pamela Collins, an assistant attorney general in Montana, urged the judges to reject both arguments, thus paving the way for McKenzie to be killed by lethal injection. She said there is a need to finalize such cases and contended that McKenzie’s claim is “abusive” because it could have been raised much earlier.

“McKenzie could have raised his claim of unconstitutional delay nearly 10 years ago,” Collins said in her brief. “But he chose not to raise the claim at that time. . . . To encourage such obvious manipulation would serve to undermine the integrity of the state criminal justice system.”

Ford responded that he had raised the issue as soon as he could, shortly after U.S. Supreme Court Justice John Paul Stevens wrote a short memorandum March 27 that essentially invited lawyers for Death Row inmates to continue to litigate what he called an important and novel issue--that lengthy stays on Death Row could constitute cruel and unusual punishment.

Stevens said the framers of the Constitution, while considering capital punishment acceptable, simply would not have envisioned a 17-year delay. The memorandum came in response to an appeal by a Texas man, Clarence A. Lackey, under a death sentence since 1978. Lackey contends that spending 17 years on Death Row constitutes cruel and unusual punishment, in violation of the 8th Amendment.

Reacting to Stevens’ memorandum, a Texas federal trial judge issued Lackey a stay. On April 27, the Supreme Court upheld that order, pending a further hearing on the 8th Amendment issue scheduled to begin June 19.

The 9th Circuit is giving McKenzie’s latest appeal a serious look, substantially in response to that action by the Supreme Court.

Ford and Collins both sparred with the three judges about the effect of the high court action in the Lackey case. When the Supreme Court sent the Lackey case back to a lower court in Texas for further hearings, it did not issue an opinion, and thus offered no guidance to how lower courts should handle such matters in the interim.

Indeed, at one point during the oral arguments Saturday, one of the three judges, Alex Kozinski, suggested that he and his judicial colleagues, as well as the lawyers, are looking for “tea leaves” to assist them.

No ruling was issued Saturday. It is expected that the three-judge panel will issue a ruling today or Monday. Whichever way it goes, the losing party is likely to appeal to the U.S. Supreme Court.

Meanwhile, the Montana Board of Pardons on Saturday declined to recommend clemency to McKenzie. The recommendation now goes to Montana’s Republican governor Marc Raciot.

McKenzie was convicted in March, 1975, of the torture-murder of schoolteacher Lana Harding in Conrad, Mont., in the northeastern part of the state.

Her battered body was found in November, 1974, in a field near the seed company where McKenzie worked. She had been raped, strangled with a clothesline rope and her head bashed with heavy metal objects.

Numerous appeals by McKenzie have been rejected by state and federal courts during the past 20 years. Most of the time since then he has been living in a 6-by-9-foot cell. Of his eight execution dates that were set and stayed, the last stay was dissolved by a federal judge in Montana on Feb. 23, setting in motion the latest round of appeals that led to Saturday’s hearing.

Since his latest execution date was scheduled, McKenzie has not been allowed to have “contact visits” with family members, which Ford contends is a violation of his rights. Collins disagreed, saying the policy was instituted for security reasons.

Kozinski and his colleagues, Robert Beezer of Seattle and William Norris of Los Angeles, asked tough questions of both lawyers.

“You are seeking a stay of execution,” Beezer said to McKenzie’s lawyer, Ford. “If we issue a stay, we’ll be part of the cruel and unusual punishment you say is being inflicted on the prisoner.”

Kozinski escalated the debate after Ford said any delay to resolve the 8th Amendment issue would be brief and inconsequential considering how long McKenzie has been on Death Row.

If the argument on behalf of McKenzie and Lackey were accepted, Kozinski said, it “would drastically affect the calculus in every Death Row case. . . . Every time you granted a stay, you would have to weigh the possibility that by granting a stay you would be inflicting cruel and unusual punishment.”

Ford countered that if the inmates prevailed, it would benefit the entire administration of death penalty appeals.

Kozinski questioned why the argument had not been raised earlier. He said the maneuver reminded him of last-ditch arguments to delay the execution of Robert Alton Harris in California on grounds that executing someone in the state’s gas chamber constitutes cruel and unusual punishment.

Harris was executed at San Quentin on April 21, 1992, after the U.S. Supreme Court overturned the last of four overnight reprieves that delayed his execution by six hours. The extraordinary duel between the Supreme Court and several 9th Circuit judges precipitated changes in the way the 9th Circuit handles death penalty appeals just before the scheduled executions.

“When you ask for a stay, you are appealing to the state’s equitable power,” Kozinski said. “When you wait, you have a problem.”

But Ford said he had acted as promptly as possible, noting that he had asked for no delays during a lengthy period of representing McKenzie on various appeals. Kozinski agreed that Ford’s record was unblemished and that he had not filed frivolous motions.

At the end of his argument, Ford told the judges that they could not be wrong if they simply did what the U.S. Supreme Court did in the Lackey case--issue a stay until a full hearing is held by a lower court on the 8th Amendment issue.

Kozinski also questioned Collins sharply on that point. “Isn’t Mr. Ford’s statement that we can’t go wrong by doing what the Supreme Court did in Lackey . . . a powerful argument?”

Collins responded that it would be “incredibly inequitable” to Montana to further delay the execution.

Kozinski and Beezer, appointed by President Ronald Reagan, generally have upheld death sentences. Norris, appointed by President Jimmy Carter, is viewed as unsympathetic to the death penalty.